Young lawyers chosen to clerk for U.S. Supreme Court justices are the most brilliant law school graduates of their generation. Some go on to serve as justices themselves – Roberts, Rehnquist, Gorsuch, Kavanaugh, Barrett, Kagan, White, Breyer, Stevens.
One remarkable fact about President Trump’s attempt to block the peaceful transfer of presidential power for the first time in the 230 year history of the Constitution is that a remarkably high number of brilliant Supreme Court clerks signed on – John Eastman (Clarence Thomas), Sen. Josh Hawley (John Roberts), Sen. Ted Cruz (William Rehnquist) and D. John Sauer (Antonin Scalia).
All four backed the unconservative notion that one state – Texas – should be able to get the Supreme Court to toss out the presidential electors of four other states to reverse the election. Eastman even advised Vice President Mike Pence he had the power to refuse to accept certified electors on Jan. 6 and riled up the crowd that marched on the Capitol in support of that objective.
As former Sen. John C. Danforth and other noted Republicans put it in a friend of the court brief in December, 2020, the idea that one state could get federal courts to knock out the electoral votes of other states is “contrary to 230 years of history” and “would make a mockery of federalism and separation of powers.” Federalism and separation of powers are central to tenets of a conservative interpretation of the Constitution.
A notch down from these brilliant former Supreme Court clerks are other well known attorneys who directly represented Trump in court and are facing disciplinary consequences – Rudy Giuliani, Trump’s personal attorney, Sidney Powell, who had represented disgraced former National Security Adviser Michael Flynn, Lin Wood, a noted Georgia attorney, Cleta Mitchell, participant in the infamous call in which Trump attempted to force Georgia Secretary of State Brad Raffensperger to “find” enough votes to flip the state;Jenna Ellis, a Colorado attorney and conservative media commentator; Boris Epshteyn, a former Trump aide who has sought “alternate electors”; and Joseph diGenova, who was Reagan’s U.S. Attorney in D. C. and said after the 2020 election that a Trump Homeland Security official should be “drawn and quartered. Taken out at dawn shot” for having declared the election free of fraud.
The lawyers are accused of lying to the court and/or in public statements about the election and for arranging for fake electors.
Legal publications such as the National Law Journal, Lawfare and the ABA Journal have covered the legal disciplinary actions well, with Lawfare devoting a special section to Capitol Insurrection.
In a column last month, Lawfare’s highly respected editor, Benjamin Wittes, zeroed in on a judge’s ruling in March that Eastman’s claim of attorney-client privilege failed because the privilege does not cover an attorney’s actions helping a client commit a crime – in other words Eastman’s attempt to help Trump subvert the election.
‘Certainly Watergate produced no document about Richard Nixon comparable to it in its combination of brevity, spare factual simplicity, and total evisceration of its subject’s honor and conduct. Nor did Teapot Dome or the Whiskey Ring scandals produce such material concerning Warren Harding or Ulysses S. Grant. Nothing that Lawrence Walsh had to say about Ronald Reagan or that Kenneth Starr wrote about Bill Clinton, both after years of investigation and exposition at great length, remotely approaches it in power.”
The opinion, Wittes says, “leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government….the judge certainly appears to be correct that Trump was using Eastman’s legal services in conduct that, as a prima facie matter, violates both 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 371, the former of which forbids the corrupt obstruction of an official proceeding and the latter of which criminalizes conspiring to defraud the United States.”
Remarkably, even though the federal judge has basically accused Eastman of having aided Trump in a crime – not just any crime but a crime to block the peaceful transfer of power for the first time in American history – Eastman is continuing to press the case by calling upon states such as Wisconsin to decertify their electoral votes for Biden.”
Meanwhile, a new group of liberal lawyers, the 65Project has begun filing complaints against lawyers involved in filing the 65 baseless lawsuits Trump forces pressed without success between the election and inauguration.
There has been little coverage of the group, aside from a detailed article by Jennifer Rubin in the Washington Post. The only other coverage found in a Lexis-Nexis search was by The National Pulse, a website that says “it is delighted to be able to state that we have never had to issue a substantive correction, apology, nor retraction unlike large corporate media entities who rush to publish false stories.” Its story is headlined: U.S. Election Integrity Lawyers Are Being Targeted By a Group Whose Leader Accepted a Chinese Communist Propaganda Junket.” It smears the group as a Chinese front: “Former Senator Tom Daschle – a board member of a new dark money, left-wing group targeting conservative election integrity lawyers – took a trip to China sponsored by a key communist influence group flagged by the U.S. government for its efforts to infiltrate American politics. The new group, 65 Project, seeks to deter right-wing lawyers from fighting on behalf of election integrity by attempting to disbar and intimidate lawyers who fought for the issue during the 2020 election.”
Action taken against Giuliani, Powell, Wood
The New York courts suspended Giuliani’s law license a year ago, which means his license will likely remain suspended as the years-long disciplinary process plays out. The court decided that Giuliani made numerous knowingly false statements, including: “false statements that there were 600,000 to 700,000 fabricated mail-in ballots [in Pennsylvania]; “false statements that dead people ‘voted’ in Philadelphia in order to discredit the results of the vote in that city;” “numerous false and misleading statements regarding the Georgia presidential election results,” such as false statements related to voting by underage voters, felons, and dead people and false statements concerning Dominion Voting Systems and illegal vote counting; and numerous false statements about illegal voting by undocumented residents of Arizona.”
Sidney Powell and Lin Wood were sanctioned by a Michigan court last summer also for claims about Dominion. The court ordered them and seven other lawyers to pay the fees and court costs and complete continuing legal education courses in the areas of election law and pleadings standards. The court also referred the lawyers to the authorities responsible for disciplining lawyers in Michigan and the other states.
“[T]his case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so,” U.S. District Judge Linda Parker said, calling it “a historic and profound abuse of the judicial process.”
Powell asserted that Dominion had provided a “back door” that allowed officials to “take a certain percentage of votes from President Trump and flip them to President Biden.” She claimed the software was designed “to rig elections” and was a “massive criminal voter fraud.” She also suggested that state officials got kickbacks and bribes to install these systems.
She said Dominion was “founded by foreign oligarchs and dictators to ensure computerized ballot stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chávez never lost another election.”
When sued for defamation, Powell’s lawyer suggested Powell’s public statements were not intended to be statements of fact and should not have been taken seriously. No reasonable person would conclude that the statements were truly statements of fact, Powell claimed.
In another case involving false claims about Dominion, a federal judge last November ordered two Colorado lawyers to pay nearly $187,000 to defray legal fees growing out of their pro-Trump election suit. The two lawyers, Gary D. Fielder and Ernest John Walker, filed the case in December 2020 as a class action on behalf of 160 million American voters, alleging there was a complicated plot to steal the election from Trump. The court concluded:
“As officers of the Court, these attorneys have a higher duty and calling that requires meaningful investigation before prematurely repeating in court pleadings unverified and uninvestigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government.”
The two had sought $160 billion in damages, alleging a scheme involving Dominion; the tech company Facebook, its founder Mark Zuckerberg and his wife, Priscilla Chan; and elected officials in four states.
Loopholes in ethics rules
One aspect of the legal ethics issue that has not been covered extensively is the ambiguity about whether a lawyer’s false public statements about an issue of public importance are subject to discipline.
This is especially uncertain when the lawyer is speaking as a public official and is not representing a client – Sens. Hawley and Cruz, for example.
Public officials speaking about important government matters can claim First Amendment protections, even for some false claims, experts say.
Even lawyers who were acting for clients may escape discipline for statements made out of court to the press.
Andrew M. Perlman, dean of Suffolk Law School, wrote, that, “while representing President Trump’s legal interests (i.e., while acting in their roles as lawyers), Sidney Powell, Rudy Giuliani, and John Eastman made numerous comments outside of court, such as at press conferences, on social media, and on television, that some have alleged were knowingly false but did not necessarily violate any legal responsibilities outside of the rules of professional conduct.
“..The comments by Eastman, Giuliani, and Powell did not violate the rules of civil procedure because they were not made in the form of court filings.”
Lawyers who lie in legal proceedings can be sanctioned for violating rules of civil procedure.
But lawyers who lie to the press on the courthouse steps, can’t be sanctioned under those rules. The only discipline they could face is violating the lawyer’s Code of Professional Responsibility, which is more vague.
Perlman says the only provision that applies is “Comment  to the Preamble to the Model Rules, which says that: a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
But he concludes: “In ordinary circumstances, the profession should hesitate to discipline lawyers for discussing matters of great public interest, including (and perhaps especially) with the press. But given the institutional stakes here and assuming the constitutionality of the basis for discipline, the profession should not be reluctant to impose discipline when lawyers knowingly spread misinformation in the course of litigation that undermines the legitimacy of our democracy.”
One final ethical gray area surrounding Jan. 6 was Justice Thomas’ failure to recuse himself from a Jan. 6 case even though his wife, Ginny, wrote 29 texts to former White House Chief of Staff Mark Meadows urging efforts to overturn the Biden win.
The National Law Journal quoted legal ethics experts who concluded Justice Thomas arguably crossed the line in not recusing himself from a case where he was the lone dissenter to a Supreme Court action turning over Trump records to the House investigating committee.
The ethics experts said Thomas’ failure to recuse himself was an “unprecedented situation,” but also pointed out that justices make their own decisions on recusals under the current rules that guard separation of powers.
William H. Freivogel is publisher of GJR and covered the U.S. Supreme Court for the St. Louis Post-Dispatch. He is a member of the Missouri Bar.